Did you know that you CAN legally refuse road-side DUI / DWI tests, such as the walk-and-turn test and the handheld breath test? Those tests can significantly hurt your case at court, and it might help your case if you do refuse to perform them. However, in Virginia, you must do the breath test at the station, or else you could be charged with refusal.
Hello, I’m Andrew Flusche. I’m a Virginia traffic attorney. Did you know that you don’t have to take the preliminary breath test that’s offered to you at the side of the road if you’re stopped for DUI or DWI?
People in Virginia are very confused about what tests are required of them and not required of them when they’re pulled over for a DUI or DWI. Essentially, the best rule of thumb is this: you do not have to do any tests on the side of the road. So you don’t have to do the physical test the officer asks you to do, and you don’t have to do the preliminary breath test. The little hand-held breath machine, that’s the preliminary breath test. You do not have to do that. So you can legally refuse all those tests.
Now, the test that you do have to do, and the one that gets everyone confused, is if the officer arrests you for DUI or DWI, or driving while drinking underage. Then you do have to take the breath test at the police station or the sheriff’s office. If they take you down to the station and have you sit in front of a big machine with a big tube – it’s kind of on a big desk – you have to take that test or else you could be charged with unreasonable refusal. That could lose you your license for an entire year without the possibility of a restricted license. But in Virginia, you do not have to submit to any testing on the side of the road.
The whole point of those tests on the side of the road is so the officer can determine if you’re intoxicated or not. He’s trying to justify an arrest to take you down to take the test that actually counts at the station. But if you refuse those tests and if there’s not any bad driving behavior, if you’re able to talk clearly and communicate with the officer, it may be hard for him to establish that he has probable cause to arrest you for DUI without those tests. More times than not, those tests are actually going to hurt your case.
Now sometimes, the refusal to do the test itself can be used as a factor. The Supreme Court has said that it can indicate consciousness of guilt or consciousness that you’ve been drinking. But at the same time, if you don’t do the tests, they can’t hurt you more than that that. That’s all that they can do, is indicate that maybe you know that you’re impaired to some degree. But the tests almost always can hurt you. So that’s kind of the problem, and why it makes sense in many cases to refuse to do those tests on the side of the road. You are legally allowed to refuse them and in many cases it makes sense.
Now, that’s not legal advice. Every case depends on the circumstances, but in many cases it does make sense and you’re not obligated to take those tests. So you need to make an informed decision if you’re pulled over for a DUI or DWI, and you need to make an informed decision about what tests you’re going to do or not do.
You don’t have to do the ones on the side of the road. You can refuse those. Politely refuse. Say “No, thank you.” But you do have to do the test at the station or you could be charged with unreasonable refusal.
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